Background

In the late 19th and early 20th centuries, the majority of bakeries in New York City existed in tenement house cellars, because rents were low and the floors—whether of wood, dirt, or occasionally concrete—were sturdy enough to support the weight of an oven. These spaces, however, had never been intended for commercial use. Whatever sanitation facilities the tenements had—sinks, baths, and toilets—drained down to sewer pipes in the cellar, which leaked and smelled foul, especially in the heat generated by the baking ovens. Ceilings in cellar bakeries were as low as five and a half feet (about one and a half metres) above the floor, a height that would force most workers to stoop. There were few windows, so even in the daytime little light came in. In the summer workers suffered intense heat, and in winter even the heat of the oven could not keep the bakeries warm. The lack of adequate ventilation also meant that flour dust and fumes, natural in any baking, could not escape.

Most people who visited these workplaces agreed that they were filthy and that the bread they produced posed a health hazard to consumers. Working long hours in this environment could not have been beneficial to the health of the workers, either. In 1895 the typical bakery worker laboured 74 hours a week, and many worked even longer.

To address these problems, the New York state assembly passed the New York Bakeshop Act (1895). Modeled on the British Bakehouse Regulation Act (1863), the law established minimum sanitation standards, including prohibitions against keeping domestic animals in bakeries and against workers sleeping in the bake room. A key provision was a clause limiting the working hours of biscuit, cake, and bread workers to 10 hours per day and 60 hours per week.

In October 1901 a grand jury in Oneida county, New York, indicted John Lochner, a local bakery owner, for violation of the Bakeshop Act on the basis of an inspector’s complaint that one of Lochner’s employees had worked more than 60 hours in one week. In a pretrial motion, Lochner asked for dismissal on the grounds that the grand jury had not properly stated the charges and that, even if the charges were true, what he had done did not constitute a crime. After the judge dismissed both objections, Lochner refused to plead and was found guilty.

Lochner took his case to the Appellate Division, which upheld the law (3–2), and then to the Court of Appeals, New York’s highest court, which also ruled for the state (4–3). He finally appealed to the Supreme Court, which heard oral arguments on February 23, 1905.

In their argument before the Supreme Court, lawyers for Lochner attacked the Bakeshop Act as prohibited class legislation, because it applied to some bakers and not to others (e.g., it did not apply to bakers in hotels, restaurants, and clubs). They also maintained that the hours provision did not fall within the legitimate purview of the state’s police power (its power to issue laws and regulations to protect public health, safety, and welfare), because baking was not the type of business that needed special regulation. Unlike mining, for example, baking was a generally healthful occupation. Thus, if the court allowed the law to stand, “…all trades will eventually be held within the police power.” Finally, they denied that the Bakeshop Act was actually a health measure. The New York law, they declared, was really an hours regulation on which there had been tacked a few sanitation provisions.

Interestingly, the lawyers’ brief contained an appendix consisting in part of mortality figures from England. The figures showed that the mortality rate of English bakers was lower than that of the general population and about equal to those of cabinetmakers, masons, and clerks. The appendix also included excerpts from medical articles recommending better sanitation and ventilation in bakeries but not shorter hours.

Arguing for the state, Julius M. Mayer, the New York attorney general, filed only a short brief in which he made three points: first, Lochner had the burden of proving the statute unconstitutional, as opposed to New York having to prove it was valid; second, the purpose behind the Bakeshop Act had been and remained the protection of the public health and the health of bakery employees; and, third, since the law was so clearly a health measure, it fell within the legitimate purview of the police power.

Majority and dissenting opinions

In its ruling, the Supreme Court ignored the question of class legislation, holding instead that the Bakeshop Act (particularly its hours provision) was an unconstitutional infringement of freedom of contract (the freedom of employees to sell their labour to employers), which the court had recognized in Allgeyer v. Louisiana (1897) as part of the liberty protected by the due process clause of the Fourteenth Amendment. (The due process clause prohibits the states from depriving “any person of life, liberty, or property, without due process of law.”) Writing for the majority (5–4), Justice Rufus Peckham argued that the curtailment of contractual freedom imposed by the act could be sustained only if it served to protect public health or the health of workers at risk, which it clearly did not do. “Clean and wholesome bread,” he asserted, “does not depend on whether the baker works but ten hours a day or only sixty hours per week.” Citing Holden v. Hardy (1898)—in which the court had upheld an hours law that applied to workers in dangerous occupations, including mining—Peckham then asked whether any proof existed to show that baking was a dangerous or unhealthful trade, and he concluded that none did (here he clearly relied on the appendix submitted by Lochner’s lawyers, though he did not cite it directly). Since the hours law failed to qualify as a health measure, it could not be maintained as a valid exercise of the police power, according to Peckham.

Justice John Marshall Harlan delivered the main dissent, which was joined by Justices Edward White and William Day. The police power, Harlan wrote, extends at least “to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights,” and the Fourteenth Amendment had never been intended to interfere with this power. Liberty of contract certainly did exist, but it had to be subordinate to the police power.

Although Harlan’s dissent was well crafted, for the most part it has been overshadowed by the brief but memorable dissent by Oliver Wendell Holmes, Jr. The majority opinion, he charged, was based on “an economic theory which a large part of the country does not entertain.” The state’s right to interfere with liberty of contract was well established in history, he argued, pointing to such examples as laws against usury or Sunday work. Furthermore, a constitution is not supposed to embody a particular economic theory, be it paternalism or laissez-faire. “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics” (1851), a famous argument for laissez-faire, Holmes wrote. The whole idea of liberty, he continued, is perverted whenever it is “held to prevent the natural outcome of a dominant opinion,” except when everyone could agree that a particular statute infringed upon fundamental principles, which was not the case here. He concluded that a reasonable person would find the hours provisions to be legitimately related to health and that therefore the law should be upheld.

While bakery owners and other businessmen applauded the court’s decision, organized labour denounced it as reactionary, confirming their view of the judiciary as a handmaiden of capitalist entrepreneurs and an enemy of working people. Lochner was destined to become a symbol of judicial interference with the democratic process, and Holmes’s dissent became a rallying cry for the Progressive movement in the United States.